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Published:
2018-04-13 12:32:42 -0400
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spotlight on legal issues

Lately, OTW Legal has received many queries and concerns about recent U.S. legislation known as FOSTA/SESTA. We want to reassure you that the law as it currently stands does not apply to fiction, and therefore should have no impact on the Archive of Our Own.

The term “FOSTA/SESTA” refers to legislation that has been passed by U.S. Congress and the Senate, purporting to combat what it describes as “sex trafficking.” The legislation would make it a crime to operate an interactive computer service “with the intent to promote or facilitate the prostitution of another person.” (That is, the exchange of sex for money.) Under the law, sites that “knowingly assist[], support[], or facilitate[]” prostitution can be held liable for user-posted material.

President Trump signed FOSTA/SESTA into law two days ago. Some sites, including Craigslist, preemptively changed policies in anticipation of the legislation becoming law, and in response to the FBI’s seizure of Backpage.com, a classified-ad site that was often used to advertise personal services including sex work, and which the FBI has allegedly linked to illegal sex trafficking.

Once the law goes into effect, it may not last. Many have argued that it is unconstitutional for a number of reasons, including that it effectively makes it illegal to facilitate promotion of services that are legal in some U.S. states. Many have also argued that it violates the First Amendment, and that it may make it harder for legal sex workers to maintain their personal safety and for U.S. law enforcement to identify and pursue victims of illegal sex trafficking. But unless and until it faces legal challenge in the courts, FOSTA/SESTA will probably be law.

What does this mean for fans?

FOSTA/SESTA is about promotion of personal services—prostitution—and not about fiction, art, or any other sort of fanwork.

Some sites may voluntarily decide to change their policies regarding pornography or other adult-themed material in response to the law, but those changes would not be required by the law. The only policy changes that the law requires are changes that have to do with promotion and facilitation of prostitution.

It is also possible that some particularly overzealous law enforcement members may try to stretch the law to argue that fiction, art, or other expressive works that discuss prostitution constitute “support” of prostitution. The OTW believes, however, that any such interpretation would be a gross misreading of the law, and would be a clear violation of the First Amendment of the U.S. Constitution. With that in mind, FOSTA/SESTA could make sexually explicit material more vulnerable to challenge, especially if it’s material that law enforcers do not understand—but it will not make such material illegal, and it will not make hosting such material illegal.

What does it mean for the Archive of Our Own?

The AO3 already prohibits advertising and commercial promotion. Therefore, any promotion or facilitation of prostitution that would violate FOSTA/SESTA would already be prohibited on the AO3. For that reason, in keeping with the AO3’s ongoing commitment to maximum inclusivity, any changes in the AO3’s terms of service or associated FAQ as a result of FOSTA/SESTA would be for purposes of clarification, not policy change.

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Published:
2018-03-02 13:14:33 -0500
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Fair Use / Fair Dealing Week

It’s Fair Use/Fair Dealing Week!

We here at the OTW talk a lot about how most fanworks are legal under copyright law, but we know that most people find copyright law a little bit mysterious. One reason for that is that the answer to most legal questions is “maybe.” This is particularly true for questions about the copyright doctrines of fair use and fair dealing, which are the doctrines that make (most) fanworks legal as a matter of copyright law.

So to celebrate Fair Use/Fair Dealing Week, we wanted to provide some answers to one of the questions we get most often: Why are Fanworks (Usually) Fair Use?

U.S. (and several other countries’) copyright law is limited by the doctrine of "fair use," which protects free expression by giving people the right to use copyrighted material in certain ways without getting permission or paying. The doctrine of "fair dealing" does the same thing in Canada, the UK, and a number of other countries. Courts in the U.S. have held that fair use is "not merely excused by the law, it is wholly authorized by the law."

The U.S. Copyright Act provides that certain kinds of uses of copyrighted material are fair use, and therefore are not infringing. The law provides examples of the kinds of uses that are likely to be allowed -— such as criticizing or commenting on the underlying work. The law also provides a list of factors to consider in determining whether a particular use is allowed:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Courts generally balance all four factors in deciding whether something is fair use -- no single factor determines the answer.

The Fair Use Factors

Most fanworks are fair use because most fanworks fit well within these four factors. Here’s how:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

This factor favors the kinds of noncommercial, transformative fanworks at the heart of the OTW and AO3’s mission. Although some fanworks are sold, most fanwork creators want to share their creative work without thinking about commercial gain. Commercialized fanworks may still qualify as fair use -- commerciality is only one of the factors that courts consider, and most fair use cases have been about commercial works -- but noncommercial uses are particularly favored.

Second, fanworks transform the meaning or message of the underlying work. In the case of Campbell v. Acuff-Rose, the U.S. Supreme Court explained that a use is "transformative" when it "adds something new, with a further purpose or different character, altering the [underlying work] with new expression, meaning or message." The Supreme Court explained that transformative works "lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright," and "the more transformative the new work," the more likely it is to be fair. For this reason, courts usually find that when a work is transformative, it is not infringing.

(2) the nature of the copyrighted work.

This factor doesn’t have much to do with fanworks either way. It deals with whether the original work was published rather than secret or not made available to the public, and whether the original work was factual rather than fictional. Since most fanworks are made from published works rather than unpublished or secret ones, the third factor generally weighs in favor of fair use, but the fictional nature of many fanworks' source material weighs in the other direction. Regardless, it is usually not a factor that courts tend to place heavy weight on unless the original copyrighted work was unpublished or secret.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

How this factor applies will vary widely from fanwork to fanwork, but most only take parts of the original work, and relatively small parts at that. For example, fan fiction often just uses characters, settings, or moments from a work, and recasts them into something new. (This factor, by the way, is one reason why the AO3 does not allow reproductions of whole or substantially-whole copyrighted works without the consent of the copyright owner.) Even when someone uses a "qualitatively important" part of a work, it can still be fair use.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This factor asks whether people would buy the derivative work instead of buying the original copyrighted work or some other work the copyright owner would be likely to make or authorize. Here again, fanworks are favored. This is especially true of fanworks that criticize, comment on, or otherwise transform the meaning of the underlying work in ways the copyright holder would not do or want. Often, copyright holders want people to celebrate works "as they are," but fans want to make those works do or say something new and different. These kinds of transformations do not serve as market substitutes for the underlying work -- in fact, they often help it. Fans tend to spend a lot of money on the original work and associated merchandise, and encourage others to buy also. If anything, they help promote the original creator's work.

What About Fair Dealing?

Fair dealing laws, which govern in Canada, the UK, and several other countries, are similar but not quite the same as fair use laws. Fair dealing laws provide specific categories of works that are allowed under certain circumstances. In Canada, for example, those categories include parody and satire. They also include criticism, review, and news reporting if the maker attributes their sources. And they include non-commercial user-generated content if the maker attributes their sources and the new work does not act as a market substitute for the underlying work. So just as most fanworks are the sorts of work that fair use permits, most fanworks fall into fair dealing categories.

The OTW Is Here To Help

The OTW is committed to advocating for fans and preserving the principle that fanworks are fair use. You can find out more about our work on the OTW’s legal advocacy page.

We’re here for you! If you have questions about fair use and fanworks, feel free to contact our legal team.


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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Published:
2017-12-01 12:32:57 -0500
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spotlight on legal issues

In recent weeks, OTW Legal has gotten some questions about net neutrality in the United States. Net neutrality is the principle that Internet Service Providers (ISPs) should treat all data on the Internet the same way, without discriminating or charging differently by user, content, website, platform, application, type of attached equipment, or method of communication. There's been some recent activity surrounding net neutrality regulations that fans may want to know about.

Last week, the U.S. Federal Communications Commission (FCC) released a proposal that would severely reduce net neutrality requirements in the United States. The FCC is currently in charge of regulating broadband internet access services in the U.S., and FCC rules currently forbid ISPs from, for example, blocking or "throttling" access to lawful content, prioritizing access to content based on payment, or requiring consumers to pay more for access to certain content or services. The new FCC proposal would retain existing transparency rules, but would roll back prohibitions--effectively permitting ISPs to engage in blocking, throttling, paid prioritization, and other interfering behaviors.

The FCC's proposed order has not gone into effect yet; the FCC Commissioners will discuss the proposal at their December meeting. Despite widespread and vocal opposition to the proposal, most expect that it will pass in mid-December.

What would this mean for fans?

It's difficult to predict exactly what these changes would mean, because it's difficult to predict what ISPs will do when the regulations change. Many major ISPs have pledged not to block or throttle content, but the law wouldn't prohibit them from changing their minds. Some ISPs may also decide to offer tiered pricing that would, for example, charge different amounts for access to different parts of the Internet, or create "fast lanes" and "slow lanes."

Essentially, the changes would allow ISPs to do whatever they think will be most profitable for them, which may mean (for example) giving preferred treatment to sites or services that are affiliated with the ISP or pay the ISP. This could make it more expensive for consumers to gain access to the full range of Internet services and content, and could make life harder for small sites or startups. ISPs would have to disclose when they do such things, but there would be little meaningful mechanism for preventing them, other than market forces.

Most of the effects would probably be for users in the U.S., although decisions about Internet in the United States tend to have a broad impact on access even for non-U.S. residents. Any law affecting internet access may also have an impact on works hosted by AO3, information available on Fanlore, and the OTW's day-to-day work of preserving fan works and supporting fan culture.

For these reasons, the OTW supports net neutrality and OTW Legal personnel have submitted comments to the FCC in support of net neutrality. We will continue to be involved as opportunities arise.

What can fans do about it?

Although it is likely that the FCC will adopt this proposal, the FCC is not the last word on the matter. The FCC must submit its rules to the U.S. Congress, which can overturn them. Therefore, one thing that fans can do--especially fans in the U.S.--is contact their Congresspeople to let them know that they should care about net neutrality. Knowing that net neutrality is important to their constituents, and having concrete examples about why constituents care about net neutrality, will make a difference in whether Congress decides to overturn the FCC's plan. A coalition of Internet-focused nonprofits led by Fight for the Future has created tools to make it easier to contact your Congresspeople about net neutrality, and has also planned some other actions. See their "Battle for the Net" site here.

In addition, many of the OTW's allies, such as the Electronic Frontier Foundation and the Center for Democracy and Technology, are active in promoting net neutrality. Interested fans can follow their activities and get involved through them.

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Published:
2017-11-23 13:09:46 -0500
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Spotlight on Legal Issues

Do you use screencaps or video clips in your fanfiction? If so, the OTW needs your help!

The Digital Millennium Copyright Act ("DMCA") makes it illegal to rip from DVDs, Blu-Ray discs, and many other encrypted technologies. The OTW has won a legal exemption that makes it legal to rip DVDs, Blu-Rays, and digital downloads to make fair uses for the purpose of noncommercial remix videos, like fanvids.

But the DMCA still blocks fans’ ability to make fair uses of video in other contexts, such as fanfiction. Although fair use law would often allow fans to incorporate video clips or stills into their fanfiction (making it what the law calls a "multimedia e-book") the DMCA restricts fans’ ability to gain access to video material for that purpose.

What the OTW is Doing About This

Fortunately, the law provides for a rule-making process every three years where the Copyright Office can recommend exemptions for authors to access the works they need, which the OTW has participated in. There is currently an exemption for e-books, but it only applies to nonfiction multimedia e-books offering film analysis.

A group of allies led by the OTW and the Authors Alliance are fighting for a modified exemption that will allow all authors of e-books, including fanfiction creators, to gain access to the clips they need from DVDs, Blu-ray discs, and digital streaming services.

How You Can Help

Share your stories with us! If you're a fanwork creator who's needed to rip digital content for use in your fanfiction, or if you anticipate finding yourself in that situation in the future, you can help us demonstrate why there's a need for this exemption.

The Copyright Office places an emphasis on stories from authors who have been harmed by the DMCA in the past or are likely to be harmed by the DMCA in the future, so please take our 5-minute survey and share your experience!

The deadline for us to submit our evidence is soon, so please fill out the survey by December 4, 2017. And even if you have no story to contribute, please spread this message to others. Every story helps.


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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Published:
2017-02-24 14:54:26 -0500
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Banner by Erin of a spotlight shining the OTW logo behind the text spotlight on legal issues

Last month, OTW Legal conducted a survey about fan experience with and knowledge of copyright. We had such a great response! Nearly 3,000 people participated. Because of this amazing response rate, we have a LOT of data - especially since so many gave us great, detailed answers to free response questions. So we still have more analysis work to do! But as part of fair use week, we wanted to provide some preliminary results, and give some thoughts about trends we're seeing - especially around issues related to fair use. And the best part about our results is that we're learning a lot about how we think we can help you as a legal advocacy team!

For some of the results below, we have only analyzed a portion of the data, so though the trends are meaningful, not all responses are accounted for.

First, some information about you guys as fan creators!

Pie graph showing whether respondents identify as fan creators; roughly 85% responded yes; roughly 15% responded no

Bar graph showing the types of fanworks created by respondents; from most to least popular, the answers are fanfiction; fan art; graphics; fanvids; other; podfics; filk

Bar graph showing the platforms respondents use to share fanworks; in order from most to least popular, the answers are AO3; Tumblr; fanfiction dot net; Livejournal; Twitter; Dreamwidth; Facebook; Wattpad

Most people who filled out our survey identify as fan creators, and fanfiction is by far the most common type of fanwork among our participants. This makes sense since so many of you use AO3! In fact, 97% of our participants reported having shared and/or read content on AO3 (and 32% are official members of OTW). Besides the fanworks we listed on the survey, the most common in the "other" category were: meta, cosplay, fanmixes, crafts, and roleplay. There were also many different online platforms listed; the ones represented on the chart are the most common.

Bar graph showing how many fanworks respondents consume; in order from most to least popular, the answers are many per day; a few per day; a few per week; a few per month; a few per year; less than a few per year

Unsurprisingly, our participants also read/watch/view a lot of fanworks, too!

And though an accurate count of self-described fandoms is ongoing, our initial analysis shows the following top 20 (starting with the most popular) among those who responded: Marvel (and MCU), Harry Potter, Supernatural, Star Wars, Sherlock, Star Trek, Teen Wolf, Dragon Age, Doctor Who, Avengers, Naruto, Merlin, Hannibal, Mass Effect, Lord of the Rings, Yuri on Ice, Overwatch, NCIS, Steven Universe, and Hamilton.

And now, onto questions about copyright!

Only about 15% of respondents reported having any kind of formal copyright education or training, ranging from "l'm a lawyer!" to "I watched YouTube's copyright school video." However, unsurprising to us, they also self report as knowing more about copyright than the average person.

Bar graph showing how respondents rate their own knowledge of copyright law; from most to least popular, the answers are average; slightly above average; moderately above average; slightly below average; moderately below average; far above average; far below average

Interestingly, we found that on average, those who identify as fan creators reported a somewhat lower copyright knowledge than those who do not. However, we also did not find a clear correlation between this self-reported knowledge of copyright and the actual accuracy of a description of fair use. Self reports are always tricky in surveys - but we might speculate here that those who do know more about copyright might know enough to know that they don't know everything!

We also asked some questions about the relationship between fanworks and copyright law.

Pie chart showing what respondents believe about whether fanworks are copyright infringement; roughly 7% responded yes; roughly 33% responded not sure; roughly 60% responded no

Pie chart showing what respondents believe about whether fanworks must be permitted by copyright owners; roughly 2% responded yes; roughly 33% responded it depends; roughly 65% responded no

As you know, at OTW we advocate for the legality of noncommercial fanworks and the right for creators to create and share them without permission. It seems that most of you agree with us! And for those who were unsure, that most often hinged (rightly!) on commerciality.

We also asked specifically about fair use, and analyzed all of that data to find out what people think fair use is, and how accurate their ideas are.

Pie chart showing whether respondents are familiar with US Fair Use law; roughly 8% responded that they were unfamiliar; roughly 37% responded that they had heard the term; roughly 55% responded that they were familiar

Pie chart showing whether respondents were able to accurately describe US Fair Use law; roughly 13% gave explanations with high accuracy; roughly 45% gave explanations with medium accuracy; roughly 30% gave explanations with low accuracy; roughly 12% gave explanations that were wrong

As you can see, almost all of our participants were at least aware of fair use, and more than half could explain what it was. For those who could explain, an awesome group of law students evaluated how accurate these explanations were. "High" accuracy meant that the explanation was completely accurate; "medium" meant that there was nothing blatantly incorrect, but might be slightly misleading (e.g., the implication that it turns entirely on commerciality); "low" meant that it wasn't entirely wrong but might have missed the main points (e.g., that fair use is about "personal use"); and "wrong" was an incorrect explanation (e.g., saying that it requires permission). It turns out that most of our participants have a decent understanding of what fair use is - but there's more we can do to help educate!

Bar graph showing which factors respondents believe are relevant to US Fair Use law; in order from most to least popular, the answers are commerciality; amount; transformativeness; market harm; purpose; credit; external; critique/parody; nature; education

We also asked what factors you think determine whether something is fair use. Nearly everyone who answered this question was in the ball park, naming at least one correct factor! In the chart above, only the last two are not part of what determines fair use.

The first factor in a fair use determination is the purpose and character of the use. This includes things like transformativeness (so important!), educational use, critique and parody, and commerciality. We are not surprised at all that most people hit commerciality as being a very important part of fair use. However, remember that this is not the only part! Though we advocate that noncommercial fanworks are fair use, there are some commercial works that can be fair use as well, and types of noncommercial works that might not be.

The second factor is the nature of the underlying copyrighted work - whether it's fact or fiction, published or unpublished. For fanworks, this does not tend to be very relevant.

The third factor is the amount and substantiality of the underlying copyrighted work used. So those who said things like "how much of the original comes into your fanwork" are completely right! However, it's important to remember that there isn't a bright line rule for how much this is. Like all of these factors, they're all balanced together for a fair use determination.

The fourth factor is market harm for the underlying copyrighted work. Does the new work replace the underlying work in the market, or potentially harm the potential for the original copyright owner to make money? As we know, this is almost never true for fanworks--in fact, fanworks often augment the market for the underlying work!

The most common factor we saw discussed about what makes something fair use is credit. Attribution to the original source is not generally part of what determines fair use. It might be good manners, and it might show good faith, but isn't required by copyright law. And importantly, disclaimers do not hold any official legal weight at all. Some people also mentioned external factors like the feelings of the original copyright owner towards the work, or "who has the best lawyer." Technically these things don't matter either as a matter of law, although, like disclaimers, they may have practical or ethical importance.

So what's the upshot of this? It's good news: most fans know something about fair use law, and most of what fans know is correct. But we still have a long way to go in helping fans understand how copyright law, and fair use, is good for them! Here are some things to keep in mind when you're thinking about fanworks and copyright:

  • Disclaimers and attribution don't matter, legally, but might be considered good manners
  • Commerciality is important but not all of a fair use determination
  • You don't need permission when something is fair use, and the copyright owner's feelings about fanworks don't matter, legally
  • If you get a DMCA takedown, you can fight it if your work is fair use
  • If someone remixes your fanwork, that could be fair use, too
  • If you have questions, you can come to us!

We'll be back with reports on more of the survey results. We have much more information than this, ranging from knowledge of the Digital Millennium Copyright Act, to common fan experiences with copyright, to copyright law outside the U.S., and much more! We're grateful to everyone who took part in the survey, and we look forward to sharing more with you about it!

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Published:
2017-01-20 13:25:30 -0500
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Copyright Week banner

Yesterday, we asked you to take part in a short survey about copyright law. (If you haven't done it yet, please do! And tell your friends to, too!) Today, as Copyright Week draws to a close, we want to focus on copyright and free speech.

Fanworks are the very essence of free speech: Fans saying what they need to say, building community through self-expression. A few years ago, when we asked you to tell us your stories of how fanworks have helped you, you told us powerful stories about how fanworks helped you find your voices, your skills, and yourselves. We used those stories of empowerment and self-expression to help advocate for balanced copyright laws that preserve the relationship between copyright and free expression.

How does copyright law relate to free expression? Copyright law is a double-edged sword. On one hand, copyright law promotes free expression: Authors of all kinds, from bestselling novelists to fledgling fanwork creators, can feel comfortable expressing themselves because they know that they own the copyright in what they produce, and can use copyright law to prevent people from profiting off of their expression without permission. But on the other hand, this same protection can hinder free expression, if copyright owners use it to prevent people from talking about or building upon their works. That is why copyright doctrines like Fair Use and Fair Dealing are so important: they help authors take advantage of the safety of copyright law while still allowing people to comment and build upon existing works without having to get permission.

The Organization for Transformative Works believes that copyright law should promote free speech, not restrict or suppress it. And we want to know what that means to you! In the comments below, or in an e-mail to legal [at] transformativeworks.org, tell us how creating and consuming fanworks has helped you express yourself. We will use your comments and e-mails to continue our advocacy work.

It's Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Most laws don’t get even one “week” of their own, but copyright law gets two: Copyright Week in January, and Fair Use Week in February. The OTW is taking part in both, so stay tuned!

You can learn about the OTW’s activities concerning copyright law and fandom, or ask questions, from the OTW’s legal team. Find out more at http://transformativeworks.org/projects/legal.

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Published:
2017-01-19 14:01:28 -0500
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Copyright Week banner

All around the Internet today, you can find discussions of "21st Century Creators." We think there are no better examples of 21st century creators than fans! Fans have long been in the vanguard of creating new kinds of work, using new technologies to express themselves, and popularizing new platforms for sharing creative work. But how much do fans and fan creators actually know about copyright law -- the law that surrounds almost everything that fans do? OTW Legal wants to know. Your answers will help us serve the fan community, advocate for fans, and answer your questions about the law.

We have created a short survey about copyright law, fan practices, and your knowledge, and we hope you will take part in it. It should only take about 20 minutes to complete. It's completely anonymous, and you won't have to answer any question you don't feel like answering. We'll discuss what we learn next month, during Fair Use Week.

Please tell your friends -- we want as many responses as possible. Click here to participate!

Most of all, thanks to you and fans everywhere for being 21st century creators and enjoying 21st century creativity.

It's Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake and what we need to do to make sure that copyright promotes creativity and innovation. Most laws don't get even one "week" of their own, but copyright law gets two: Copyright Week in January, and Fair Use Week in February. The OTW is taking part in both, so stay tuned!

You can learn about the OTW's activities concerning copyright law and fandom, or ask questions, from the OTW's legal team. Find out more at http://transformativeworks.org/projects/legal.

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Published:
2016-07-02 12:29:51 -0400
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Banner by Erin of a spotlight shining the OTW logo behind the text spotlight on legal issues

Last week, Paramount and CBS released "guidelines" for fan films, and a lot of questions have been asked of us at OTW, including Support and Legal, as well as in other areas online, what this really means for creative fans.

The Guidelines do indeed seem limited to fan films and even from Paramount and CBS's perspective; they don't apply to crafts, fanvids, cosplay, fan fiction, fan games, fan art, or anything else. Of course we have no idea what Paramount and CBS’s plans are for the future, and historically Paramount has not always done the best job of understanding fan culture, but at this point there’s no indication that Paramount or CBS would have any interest in taking action against fan creations other than fan films, even though the guidelines themselves are phrased very broadly. For a long time, Paramount and CBS have stayed away from challenging most fan activities—especially noncommercial ones like the fanworks posted on the Archive of Our Own-and we have no reason to think that would change.

We should also add that the fan film guidelines that Paramount and CBS put out are not actually expressions of law. They're not even a contract between Paramount/CBS and any fan film-makers.

The guidelines lay out “guidelines for avoiding objections,” but an objection is a very different thing from a valid legal claim. The guidelines talk about, for example, restrictions on length, title, use of clips, use of reproductions, compensation for service, fundraising, and distribution. Their language on "amateurs" doesn't even have definitions, and if it did, the question of amateur-vs-professional status is not something the courts take into consideration when doing Fair Use analysis; two of the most high profile cases involve findings of fair use by the rap act 2 Live Crew, and Google - neither of whom would ever be considered "amateurs".

At present, US law is much more open to fan productions than Paramount and CBS would be. As Legal Staffer Heidi explained in a recent post on the FYEAHCOPYRIGHT Tumblr, the question of whether a fan film is legal will depend mostly on copyright fair use law, and fair use law takes several factors into account. These factors include whether the new work is distributed commercially, whether it transforms the meaning or purpose of the original, how much of the original it copies, and whether it substitutes in the market for the original work. No one of these factors will answer the question completely, and in fact many courts have found fair use in cases when (for example) a work was commercially distributed or even when it copied the entire original (as long as additional content was added, and transformative). So we can envision plenty of fan films—even commercial ones—that would qualify as legally permitted fair uses that would not meet Paramount and CBS’s “guidelines".

Therefore all the guidelines really signal is what Paramount and CBS would prefer from fan films—not what the law would allow. We are, of course, keeping an eye on this, but even if Paramount and/or CBS tried to extend guidelines to other kinds of fannish creativity, we would stand up for the authors and creators whose works we host, and we do not expect that we would be standing alone.

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